In Travel Ban Appeal, Judges Don't Accept 'We’re in a Rush' Excuse

, The Recorder


Lawyers prepared for Tuesday's Ninth Circuit arguments under extreme time pressure. But the judges wouldn't cut them any breaks.

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What's being said

  • Hshmr

    I disagree with the premise of the article: that Flentje was ill-prepared for the hearing because he dodged certain questions. Rather, he found himself in the unenviable position of someone defending a controversial act before a panel of openly hostile, aggressive judges in the single most liberal federal circuit asking questions of no legal or factual relevance for the argued case. Dodging was perhaps the tactics to employ without openly confronting, and thus further antagonizing, the panel. It was absolutely out of line to ask whether President could ban all Muslims explicitly. The review is not about discussing abstract scenarios. Of course, the panel was trying to make a point that policy-making powers of the President are limited, constrained and reviewable in principle. However, the issue here is whether the judiciary is allowed to second-guess the President acting within his broad discretion in foreign policy and security. The answer that Flentje gave was substantive: executive powers of the President are limited; but the executive order under consideration is nowhere near those limits. That the judges did not like the answer and kept badgering him with the same question reflects poorly on the panel, not counsel. As to whether there is evidence that residents of the seven designated countries pose a high enough security risk, the court should have deferred to the executive and the fact that such designation dates back to the Obama administration and was based on adequate analysis. In any event, the burden of showing that there was no rational link between the government‘s interest and the measure adopted was on the states moving for the TRO. If the judges were interested in the lack of rational basis for the executive order (which goes to the likelihood of states‘ prevailing on the merits), they should have asked the appellees.

  • Darren

    Friedland‘s a silly pacifist who has no business being w/in 10 miles of national security policymaking. After all, the statutory and constitutional authority of the executive to exclude certain aliens or classes of aliens is inherently discriminatory, so questions about intended discrimination are irrelevant, as are questions about the urgency of national security policies. These are not questions within the judiciary‘s purview. Furthermore, it‘s absurd to suggest that any foreign national has a right, constitutional or otherwise, to emigrate to the U.S. The People get to decide who enters their country and, for good or bad, the People spoke in electing Donald Trump president.

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